C.B. Kekre, J.
1. This is petition under Section 417 (3), Criminal Procedure Code, for leave to appeal against the acquittal of the four non-applicants, Lalloo Ram, Kishandas, Kundanlal and Nanhelal, in a prosecution for offence of murder, in which these four non-applicants who were acquitted, were tried jointly with two others, Ramnath and Baijnath, who were convicted of the offence of murder.
2. One Nanhelal, who was also known as Nanhelal Dadhiwala, the brother of the petitioner Premdas died as a result of beating administered to him. Two separate and almost simultaneous informations were lodged at the polite station house, Hoshanga-bad, in respect of this incident, one by Ramnath, one of the accused persons, and the other by Mathoo Kotwar. The Station House Officer, Hoshangabad, went to the spot and at the spot one Sunder made a report to him, wherein he implicated the four non-applicants, as well as Ramnath and Baijnath, as having participated in the assault, which resulted in the fatal injuries to the deceased.
3. After investigation, the police put up a charge sheet for offence of murder of the deceasedagainst only two, viz. Ramnath and Baijnath. Thereafter, the petitioner Premdas made an application in the Court of the committing magistrate for joining the four non-applicants, against whom no charge sheet had been presented, as accused. The application, after making a grievance of the fact that the charge sheet was against only two out of six as-suilants, went on to state:
'The applicant, who is the brother of the deceased Nanhelal, the alleged victim of the murderous assault under enquiry, desires, therefore, to call the attention of the Court with respect to this omission of the four assailants from the scheme of the case and humbly submits that proceedings at this stage be held up and action be expeditiously takento order issue of necessary processes for securing the attendance of the said four persons, viz. (1) Lallaram, (2) Kishandas, (3) Kundanlal and (4) Nanhelal, so as to be joined as co-accused, along with Ramnath and Baijnath, who are present at the enquiry.
The joining of the said four persons is called for and is necessary in the ends of justice and this Court tan independently do it because it is seized of the case.'
4. There was a second application moved at that very time by the petitioner that he had engaged a lawyer who should be permitted to assist the District Police Prosecutor in the conduct of the case before the Court. That application was allowed. The magistrate, after considering the application, first mentioned, ordered that the four non-applicants also be arrayed as co-accused. This was accordingly done.
5. The committing magistrate, after making enquiry under Section 207-A, Criminal Procedure Code, committed all the six accused persons to the Court of session. After the trial, as stated earlier, the four non-applicants were acquitted and the petition under consideration is in respect of that acquittal,
6. The locus standi of the petitioner to make a petition under Section 417 (3), Criminal Procedure Code, has been challenged. That section reads as follows :
'417 (3). If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.'
7. The first point for consideration is whether the acquittal of the four non-applicants was in a case instituted on complaint. The learned counsel for the petitioner has urged that since the police had notpresented any charge sheet against these non-applicants, and since they were arrayed as accused on the application of the petitioner, which amounted to a complaint as defined in Section 4(h), Criminal Procedure Code, the case, so far as the non-applicants were concerned, was one instituted on his complaint, and hence he was competent to make this petition.
It was also urged that, in fact, there were two cases instituted, -- one against the two accused, Ramnath and Baijnath, on the charge sheet presented by the police, and the second against the four non-applicants on the complaint of the petitioner, and that it was only because of Section 239, Criminal Procedure Code, that the trial of the accused persons in the two different cases, happened to be a joint trial, and that in spite of that joint trial, the case against the four non-applicants remained a case instituted on the complaint of the petitioner.
8. The word 'case' has not been defined in the Criminal Procedure Code. The dictionary meaning of the word as given in Webster's dictionary, when it is used in relation to legal matters Is 'cause'. The Calcutta High Court in Sk. Osman Gani v. Baramdeo Singh, AIR 1959 Cal 145, when considering the expression 'case instituted on complaint', after scrutinising the scheme of the Criminal Procedure Code, was of the view that 'a case' means 'a cause' before the Court. The mere filing of a petition or a complaint does not by itself without anything further being done in the matter, bring into existence a 'cause'. It is only when the Court applies its mind to the matter in the petition to take further proceedings that there is a case in the sense of 'cause' before the Court. I am, therefore, in respectful agreement with the interpretation put on the word 'case' by the Calcutta High Court.
9. Now, a cause before a criminal Court, when it is initiated by an allegation of commission of an offence, is a matter relating to the facts of the commission of the offence, and that involves ascertaining, when a person is named in the allegation as the offender, whether it was he who committed it. That, however, does not mean that the cause before the Court is only in respect of the person named as an offender in the allegation or is one only in respect of offence specifically mentioned in the information, on the basis of which cognizance is taken. Cognizance is taken, under the Criminal Procedure Code, of an offence and not as against offenders.
A magistrate, in all cases, Whether instituted on a complaint or on a police report, has power to take cognizance in respect of any other offence, not mentioned in the complaint or police report, and also against persons not so mentioned, if at a subsequent stage, other offences are made out, or it is found that persons other than those mentioned, have also participated in that offence. Hence, in such a case, action taken by the magistrate in respect of an offence or offender, not mentioned in the complaint or police report, would not amount to starting a fresh case, but would be action taken in the course of proceedings already instituted.
10. In Mahabir Prasad v. State, AIR 1058 Orissa 11, an informant had made a report to the police aboxtt theft of certain ornaments. The police,after investigation, sent a final report to the Sub-Divisional Magistrate. The informant then filedwhat is known as a 'protest petition', alleging that the police had not investigaged the case properly and praying that either the police be directed to file a charge sheet, or that the Sub-Divisional Magistrate should hold a judicial inquiry. The magistrate, at first, accepted the final report, but subsequently directed holding of an enquiry by another magistrate and submitting a report.
AS a result of that enquiry by the oilier magistrate, a report was submitted that the enquiry revealed that a prima facie case against two persons for offence under Section 411, Indian Penal Code, had been made out.
11. The Sub-Divisional Magistrate then passed an order directing the police to file a charge sheet. St was pointed out that merely because a protest petition, which is usually treated as a complaint, was pending, the jurisdiction of the magistrate to take cognizance on police report in respect of the same offence, was not taken away.
12. Though the facts of this Orissa case are different, the principle that the jurisdiction of a magistrate to call for a charge sheet, even if a complaint is presented to him, is not taken away, would apply. The petitioner had made an application to add the non-applicants as accused persons. Obviously, it means that he prayed that they be added as accused in the charge sheet that was already presented by the police. This is further made clear by the statement of the petitioner that this could be done as the Court was 'seized of the 'case' ' (underlining here in ' ' is mine). The case referred to could only be the one started on the charge sheet. The petitioner did not thus contemplate initiation of a fresh or separate case against the four non-applicants.
13. The committing magistrate, in the present case, did not take action against the non-applicants treating the petition made by Premdas as a complaint. That would be seen from the fact that hedid not examine the complainant as required by Section 200, Criminal Procedure Code. The procedure for enquiry into cases triable by Court of session that was followed was one prescribed under Section 207-A of the Code and not the one prescribed under Section 207 of the Code, which governs cases instituted otherwise than on police report.
The petitioner himself treated the case as regards the cognizance of offence taken, as already instituted on police report and allowed the non-applicants to be dealt with in the proceedings that had already been instituted. I am, therefore, inclined to hold that, though the petitioner did file what may be termed as a protest petition, which is equivalent to a complaint, the case, which ended in the acquittal of the four non-applicants, was already instituted on the charge sheet, on basis of which cognizance of the offence had already been taken by the committing magistrate, and that non-mention of these four non-applicants in the charge sheet as offenders and their being subsequently added as accused, would not affect the above conclusion, since there was no separate case as such Instituted.
14. The learned counsel for the petitioner referred to a decision of a single Judge of the Calcutta High Court in Kshetrabashi v. Lalit Kumar, AIR 1959 Cal 595, where it was held that when a complaint is filed before a magistrate, who sends it for enquiry by police, whereafter the police file a charge-sheet, on which cognizance is taken by the magistrate,' the case can be said to be instituted on a complaint. The earlier Division Bench decision of the same High Court in AIR 1959 Cal 145, (supra) to the contrary does not appear to have been brought to the notice of the single Judge deciding Kshetrabashi's case, AIR 1959 Cal 595. The decision in V. B. Mohd. Ibrahim v. Alfred Schafranek, AIR 1960 Mys 173, is in line with the view taken in Sk. Osman Gani's case, AIR 1959 Cal 145.
15. (Portion omitted as not approved.)
16. The result is that the petition under Section 417(3), Criminal Procedure Code, is dismissed.